Graham

MEMORANDUM **

Bret Graham appeals pro se the district court’s summary judgment in favor of the United States in Graham’s action challenging the Internal Revenue Service’s (“IRS”) determination that frivolous tax return penalties under Internal Revenue Code § 6702 were properly assessed against him and that collection of those penalties by the IRS could proceed. We have jurisdiction under 28 U.S.C. § 1291 and, after de novo review, we vacate and remand with instructions to dismiss the action for insufficient service of process.

The government raised the defense of insufficient service of process in its first responsive motion in the district court, asserting that Graham did not, as required by Fed.R.Civ.P. 4(i), effect service of process of the action on the Attorney General and the United States Attorney. Graham conceded that he did not effect service of process on the government on the manner required by Fed.R.Civ.P. 4(i) and asked that his failure to properly serve the United States be excused based on his pro se status and the apparent constructive service on the United States. The district court did not rule on the government’s motion to dismiss.

“A federal court is without…